By Sohini Chatterjee

Edited by, Anandita Malhotra, Senior Editor, The Indian Economist

On 11th December 2013, the Supreme Court of India recriminalized homosexuality upholding Sec 377 of the Indian Penal Code (IPC) which reads as:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

The unquestioned acceptance and uncompromising promotion of the “natural” has forever troubled the understanding of gender, sexuality and politics of identity. Sec 377 is the consequence of the unchallenged position that the “normal” or the “heterosexual” savours in spaces unpolluted by acceptance of queerness, critical thinking and destabilising attempts. By institutionalizing heterosexuality as the only rightful sexual desire, Sec 377 has launched a violent assault on the identity, dignity and legitimacy of people who refuse to identify as heterosexual or whose sexual expressions cannot be confined to the limitations imposed by compulsory heterosexuality. Further, the law not only delegitimizes homosexuality and alternative sexual practices, it also tries to limit heterosexual expressions of desire to penile-vaginal intercourse. This reveals the attempt to establish those sexual practices as “unnatural” which do not lead to procreation. Thus, Sec 377 entails significant questions of gender, sexuality, civil rights, equality and democracy among other issues of vital importance. In the context of its being upheld by the Supreme Court of India in December, 2013 Sec 377 has to be debated and discussed to primarily undo the invisibility of the queer that the law tries to enforce.

Sec 377 exists to naively define the natural against the unnatural. By taking heterosexual practices of the majority as “normal”, it seeks to homogenize all other sexual activities as unnatural or “against the order of nature”. The heterosexual majority feels the fierce entitlement of defining the unnatural in terms of their perceived difference with the queer population. Since heterosexuality is the practice of the majority, it assumes an uncontested hegemony made worse by the privilege of procreation that the heterosexual has exclusive advantage of. No attempt is made at problematizing the arbitrariness of the “normal” created thus in Sec 377. That sexual identity of the majority or their procreative ability cannot be a legitimate or viable basis to construct a paradigm of “normalcy” is not taken into account by Sec 377 of the IPC. This limiting of sexual expressions to the potentially reproductive, makes a bad case for the LGBT population of India. It threatens the legitimacy of their existence. Even though the Right to Equality is enshrined in the Constitution of India as a Fundamental Right, Sec 377 exist to deny it to the queer population of India. Undivided equality has been extended to the “normal”, whose sexuality is validated by their reproductive ability. This selective favourtism in the extension of equality speaks volumes about the compelling power of heteronormative conditioning which tries to ensure domination by designating “abnormal” those sexual practices which they meticulously aim at subordinating. Suffering from the want of legal recognition, hence, the queer find themselves battling invisibility and the oppression of silence. Sec 377 makes the mainstream attempt at binarizing sexual activities into “natural” and “unnatural”, “acceptable” and “unacceptable”, “legitimate” and “illegitimate”. By establishing heterosexuality as the only tolerable expression of sexual desire, Sec 377 inflicts violence on the queer in India. It is the violence meted out through the branding of queer sexual desire as perverse and hence undesirable. It is the violence of denial of equal basic rights. It is the violence of neglect. Sec 377 is violence on the queer which makes their “Coming Out” a shameful acceptance of perversity. The law reflects a conditioned heteronormative morality which refuses to take into account consent of adult individuals involved in, what is regarded as, alternative forms of carnal engagement. In doing so, it confuses rape, child sexual abuse with consensual sex between adults. It cannot be stressed enough that Sec 377 is as arbitrary as its conceptualization of the “normal” and the “Other” is. The “Otherization” which it seeks to serve has great implications for Indian culture and democracy.

 The rationale behind upholding Sec 377 was that since homosexuality is a Western import, it must be resisted to maintain the sanctity of Indian culture. However, Khajuraho Temples in Madhya Pradesh have monuments built in and around them which contain sculptures providing explicit depiction of what is now regarded as “unnatural” sexual activities. Also, in Hindu mythology, Lord Ayyappa was born out of the union of Vishnu and Shiva. These hint at the acceptability of homosexuality ingrained in Indian culture. It was in 1860 that Sec 377 was instituted to do away with what the colonial regime thought to be “special Oriental vices”. This strangely makes homophobia a Western import in India contrary to those in favour of Sec 377 have claimed. Two things need to be understood if one tries to unlearn their reservations against the queer: One, homosexuality is not a region specific ailment. And, it is not part of Indian civil society’s modernist project. Alternative sexual practices have been part of human sexual expressions even before a debate on their normalcy or acceptability began in any part of the world. So, if xenophobia adds fuel to homophobia in India, it is entirely unfounded. Moreover, civil rights constitute an important element of citizenship in a democracy. Sacrifice of civil rights of a significant minority out of a sense of misplaced cultural identity is an affront to democratic values. Cultural identity cannot effectively be prioritized over sexual identity. An attempt in that direction reflects poorly on the democratic ethos of the State as it comes dangerously close to authoritarianism. The aim is to validate heterosexuality through exclusion and invisibilization of the easily outnumbered minority. Providing the minority with inadequate citizenship is shameful for the world’s largest democracy.

Sec 377 is unique in creating marginalization within the already marginalized. The law is silent on the sexual activities outside carnal intercourse. This keeps lesbian sexual practices outside the purview of the debate fuelled by Sec 377. However, the silence is hardly surprising. Since in patriarchal cultures women’s sexuality remains a strictly guarded secret, there’s little wonder in its not find articulation in law. This invisibilization of lesbian and bisexual women from the legal discourse is responsible for the precariousness of queer women in India. The only positive purpose that Sec 377 serves is that it provokes debate by covertly acknowledging the existence of alternative sexual expressions of queer men. However, this courtesy is not extended to queer women. There is a tendency of essentializing women’s sexuality to the strictly heterosexual. This poses the threat of invisibility for queer women whose precariousness becomes a valid legal construction.

Heterosexual cisgender men and women constitute the paradigm of normalcy. But even consensual heterosexual practices of adult citizens can involve non-traditional carnal intercourse is a fact that Sec 377 does not consider. This creates difficulty for personal sexual liberties that citizens in a democratic enviornment have the supposed privilege of enjoying. The State’s articulation of what are rightful sexual practices is an attempt to control the body and sexuality of its citizens. Sec 377 tries to construct a bizzare sexual morality which can potentially wreck havoc on the life, liberty, privacy and dignity of citizens. Thus, one becomes almost compelled to raise one significant question. When a sexual act, no matter how “perverse”, takes place between two consenting adults in the privacy of their home, by what logic can it be justified as a criminal offence? It has been argued time and again that very few cases have been lodged under Sec 377 so far and most of it have involved questions of non-consensual sexual acts. So, the probability of Sec 377 convicting individuals for consensual homosexual activities in private is rare. But the very fact of its existence poses great threat to individuals indulging in alternative sexual practices. Homosexual men are the worst victims of Sec 377. In the absence of a law protecting their privacy and identity, the precariousness of their existence is confirmed. Moreover, the law which was thought to be a reasonable measure to prevent HIV/AIDS may said to have increased the risks of the diseases by deliberately pushing the queer population to hide in the fear of imprisonment. The more the State encourages such precariousness, uncertainties of oblivion and shame, grim becomes the chances of building a healthy citizenry. As awareness around Sec 377 is promoted by scholars, activists, protestors across the globe, it is time this archaic law is struck down for the benefit of democracy in India. The state needs to be self-critical and flexible. It also needs to understand that laws are not always ethical or moral. Sec 377 appears to be a greater culprit, more than what the queer in India are accused of being. There’s no rational basis for the imposed precariousness of the queer in India and the lack of freedom of expression and equality that they are made to suffer at the hands of the State. If it is not declared unconstitutional in the near future, India’s pride as the largest democracy in the world would seem vapid.

Sohini Chatterjee is a student of Political Science at Presidency University, Kolkata. Her interest areas include identity politics, Indian culture, mythology, contemporary Indian politics and narratives of diaspora. She identifies as a feminist and believes it defines her more than anything else. Writing is not solely an intellectual exercise for her but a powerful weapon or a magic wand which, she believes, can make the world a better place.

Posted by The Indian Economist | For the Curious Mind